Don’t Let Patent Law Hold Back Interaction Design

Patent law is a powerful tool for encouraging innovation, but it’s also temperamental. As recent efforts to discourage patent trolls have shown, it’s not enough to simply enforce the rules; they must also be updated and fine-tuned to respond to the technology and economy around them. This is why the current state of patent law in interaction design is so alarming. What we have at the moment is a legal environment that hasn’t yet caught up to current technology, and the much-discussed “pinch-to-zoom” lawsuit makes it clear that this disconnect is starting to be a drag on innovation.

To be effective, patent law must carefully distinguish between two things: the unique combination of information, cues, and actions that define a specific innovation (the embodiment)and the underlying building blocks that make it possible (the elements). It makes sense, in other words, to protect a book or a painting from being reproduced without permission, but it would be absurd to copyright an element such as the word “next” or the color blue, and we wouldn’t even try. In choosing to protect the specific embodiment (article, photograph, song, etc.) but not the individual elements (words, colors, notes), our laws generally do a good job of protecting creative work without inhibiting others from following suit.

One glaring exception to this balance, for designers and entrepreneurs at least, is the arena of digital interaction. The law simply doesn’t match reality when it comes to the ways we interact with our digital devices, and this is having a real impact on innovation. In the case of Apple versus Samsung, what’s been successfully patented isn’t a technological advancement, or even a branded visual identity, but a human gesture that’s as fundamental as rotating a knob to adjust volume, or giving a thumbs-up to express approval. Gestures, I would argue, are universal elements of interaction, as basic to the creation of new experiences as words are to poetry.

Patenting gestures and basic workflows is destructive because they aren’t just arbitrary actions dreamed up by one company or another, but ways of manipulating the world, hardwired into human brains by evolution and cultural conditioning. Interaction design is a younger discipline than graphic or industrial design, and much of its practice is still in the realm of basic discovery: finding the most efficient process for listing and choosing among ten options on a small screen, for example, or the most intuitive way to build and re-sort a playlist. These aren’t just aesthetic or emotional decisions, but deeply functional ones. No amount of clever coding or artful visual treatment can make up for their absence.

But the relative newness of interaction design also brings confusion, as the patent system struggles to figure out how to best regulate it. In the resulting debate, the loudest voices belong to large tech companies with deep pockets, ample legal resources, and strong motivation to discourage competition. This is why basic actions that any designer could tell you are part of the foundational language of human/device interaction – pinching to zoom, rotating a screen to change orientation, swiping to unlock a device – are repeatedly claimed as proprietary technology, and sometimes even upheld.

From inside the design studio or the startup office, this legal landscape presents a dismal view. So much of what makes or breaks a new digital venture – especially on a mobile device – is the experience of using it, and increasingly, the obvious path to the best experience is fraught with legal danger. There are hundreds of “right” ways to pick the color palette for a new product line or the shape of a mobile device, but a digital interaction often has a single best solution, because it’s essentially responding to the way your brain works. It’s not uncommon, in fact, for multiple designers working independently to arrive at the same solution to an interactive problem, despite having no contact with each other. When patent law awards protection to whoever discovered this solution first (or more likely, whoever had the legal resources to get it filed first), it does a very good job of scaring other designers and entrepreneurs away from using it. In my experience, it can even scare them away from expending the time and effort to try and find it.

That’s not what patent law is for, and I doubt it’s what lawmakers intended it to do. But by continuing to indulge lawsuits over fundamental action patents, US courts are actively discouraging innovation. As someone who has worked hard over the past 30 years to obtain dozens of patents, I deeply appreciate the value they have for business and for consumers. But unless we revise these laws to treat interaction design as sensibly as other creative fields, the future of technology will be a dim shadow of its true potential.